Bulletproof DUI Reports

Module One: Course Introduction 

1. Instructor  Introduction.

2. Explain the course objective.

3. Encourage attendees to ask questions and share feedback with other attendees.

4. Explain that certificates will be emailed after the class.

5. Go over the three disclaimers:

• Laws and agency standard operating procedures may be more restrictive. Blue to Gold is teaching the federal standard unless otherwise Therefore, students must know their state and local requirements in addition to the federal standard.
• If students have any doubts about their actions, ask a supervisor or legal advisor.
• The course is not legal advice, but legal education. Therefore, nothing we teach should be interpreted as legal advice. Check with your agency’s legal advisor for legal

Module Two: Report Writing Overview

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3. No, the defendant must first clearly state the grounds upon which the suppression hearing is based and the requested For Example: Application for all pretrial orders, except for motions and objections made during evidentiary hearings and trial, must be in the form of a written motion, unless the court grants permission to make an oral motion. 3 Evidentiary support may be made by affidavit, and the motion must state clearly the grounds upon which it is based and the requested relief. 4 All motions and other filings must be filed and served in accordance with the Rules of Civil Procedure.

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6. Pro Tip: If it’s not documented, the presumption is it didn’t

7. Case Sample: A reserve officer stopped a car for speeding and driver was Another officer took the arrest and reserve didn’t make a report. Synopsis: A reserve officer used a radar unit to determine that Zachariah Marshall was speeding in a 50 MPH zone. The reserve officer stopped Marshall and another officer provided backup. The backup officer determined that Marshall was intoxicated and arrested the driver for DUI. Neither officer charged Marshall with speeding, nor did the reserve officer make any report about his pre-stop observations. Later, Marshall argued that since there was no evidence of probable cause to make the stop, it was unlawful and the DUI evidence must be suppressed. Court Decision: The court disagreed with Marshall. First, the court said the reserve officer testified that even though he forgot exactly how fast Marshall was traveling, he remembered the high “squeal” from the radar which indicated the target vehicle was traveling at a high speed. Therefore, the reserve officer had at the very least reasonable suspicion that Marshall was speeding…therefore the stop was lawful. Held: IN Supreme Court upheld conviction because reserve testified he remembered “high squeal” from radar and RS existed for stop. Still, case could have been avoided with supplemental!

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9. It’s my recorded recollection of the incident for the purpose of refreshing my memory as needed to testify accurately.

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11. Is an arrestee presumed “innocent until proven guilty” at the law enforcement level? Answer: The judge and jury are required to have that viewpoint, not law enforcement. During an arrest, do you presume the person is innocent? The opposite is true, and your job is to convince the court to agree.=

12. Pro Tip: You want to convince an uninformed juror, who has no idea how the criminal world operates, that the suspect committed the crime and that your actions were reasonable, appropriate, and defensible.

Module Three: Report Mechanics

1. Rule: Don’t write in ALL

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3. Examples:

4. Rule: A topic heading is when you include a separate sentence before the paragraph to explain what you’re about to discuss. A true pro uses topic headings.

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6.  Examples:

7. Rule: Bullet points are an effective way to justify legally significant actions. Additionally, bullet points are a great pre- report articulation tool.

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10. Question: Why would an objectively reasonable officer believe alcohol was in the car?

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12. Rule: Write in the first person, not the third person “Your Affiant” style.

13. Examples:

14. The Rule of 5: Strive to articulate at least five facts and circumstances for your search, seizure, and criminal Why 5, why not 4 or 6?

15. Video: “Seven Minute Abs”

Module Four: Pretext Stops

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2. This is true even if police deviate from department policies. There’s still no Fourth Amendment But must never be motivated by racial profiling.

3.  Case Sample: Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.

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5. Video: “Traffic: Pretext Stop“. Questions: Valid pretext stop?

Module Five: Pre Stop Issues:

1. Legal Rule: Since your subjective mindset is irrelevant, defendants may try to argue you had no legal authority to stop

2. The precise terms used in the drinking/driving statute, individual definitions provided for the state’s motor vehicle code, and judicial decisions must be reviewed in order to determine how any individual state deals with these As an example, the New Mexico code uses only the word “driving” but judicial decisions have held that that term encompasses driving, being in actual physical control or exercising control over or steering a vehicle being towed.³ The same is true for Colorado and Missouri. Maryland actually defines the term “drive” to mean drive, operate, move, or be in actual physical control of a vehicle even while being towed.⁶ If the conduct that is alleged as driving would constitute actual physical control then research should be done in that area also. The conduct, not the label, should be the focus.

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4. Legal Rule: It’s vital you read and understand your specific state law. I teach generalities and best-practices. I don’t teach specific state law.

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6. Example:

7. Best Practice: These differences come into play when you did not observe the vehicle in motion, e.g. accident scenes.

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9. Pro Tip: “Driving” has the most limited meaning of the statutory terms used, and in many jurisdictions a person is considered to have been “driving” only if the person steered or exercised control over the vehicle while it was in motion or intentionally stopped.

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11. Legal Rule: A driver’s confession, standing alone, will not be enough to prove “driving” under state law. You need additional evidence. However: But a sufficient corpus delicti was proved by circumstantial evidence where the defendant was observed standing alone by his vehicle in an obvious drunken condition;¹³ where the defendant was seen entering the driver’s side of the car within five to ten minutes of the accident and the deceased’s body was found several feet from the demolished car under circumstances from which investigators concluded that he occupied the passenger’s side of the car; where the defendant was found unconscious lying near the driver’s side of the truck and two occupants of the truck were found dead in the front of the truck, where defendant summoned a tow truck and when it arrived he hailed it; and where the defendant was at the scene of a crash, he owned the truck and the passenger was passed out in the crew cab; injuries consistent with driving; while out of vehicle but other parties in their vehicles; defendant lying in the vehicle as if he had been A sufficient corpus delecti has been shown where two persons were standing next to two trucks and both men admitted to driving.²¹ And courts have allowed the statement of the defendant, along with other corroborating evidence, to prove the corpus delecti. The Washington Supreme Court required admissions be “corroborated by other evidence” prior to their being admitted into evidence. Where admissions cannot be corroborated they should not be admitted.

12. Case Sample: After responding to a single car accident, the husband admitted to driving. During the investigation the wife told the officer she was sitting in the middle seat. Synopsis: Georgia. State v. Loy, 251 Ga. App. 721, 554 S.E.2d 800 (2001) (sufficient evidence to show defendant was driver of the vehicle when it crashed; sufficient evidence of intoxication to support finding of probable cause for the arrest even though officer did not see defendant in the driver’s seat; defendant was standing beside car that belonged to him and saw person being taken from passenger seat by rescue personnel and another witness said the defendant was driving shortly before the crash; see also Hall v. State, 200 Ga. App. 585, 586, 409 S.E.2d 221 (1991) (overruled on other grounds by, Curtis v. State, 275 Ga. 576, 571 S.E.2d 376 (2002)); Napier v. State, 184 Ga. App. 770, 771, 362 S.E.2d 501 (1987)). Held: The wife’s statement was enough circumstantial evidence to uphold the husband’s confession to driving.

13. Pro Tip: Driving can be proved by circumstantial evidence. Direct evidence is not required.

14. Case Sample: A suspect was standing next to a car, he was the registered owner, the car was involved in an accident and immobile, and a witness saw the driver behind the wheel. Synopsis: State v. Loy, 251 Ga. App. 721, 554 S.E.2d 800 (2001) (sufficient evidence to show defendant was driver of the vehicle when it crashed; sufficient evidence of intoxication to support finding of probable cause for the arrest even though officer did not see defendant in the driver’s seat; defendant was standing beside car that belonged to him and saw person being taken from passenger seat by rescue personnel and another witness said the defendant was driving shortly before the crash; see also Hall v. State, 200 Ga. App. 585, 586, 409 S.E.2d 221 (1991) (overruled on other grounds by, Curtis v. State, 275 Ga. 576, 571 S.E.2d 376 (2002)); Napier v. State, 184 Ga. App. 770, 771, 362 S.E.2d 501 (1987)). Held: This was enough circumstantial evidence that the arrestee drove the vehicle.

15. Case Sample: An officer observed a bruise on the suspect’s left shoulder. Synopsis: New People v. Dutcher, 244 A.D.2d 499, 664 N.Y.S.2d 110 (2d Dep’t 1997) (bruise on left shoulder came from seat belt indicating defendant was driver). Held: This seat belt bruise helped prove the suspect was the driver.

16. Case Sample: Cops responded to a call of a truck stuck in the They observed an intoxicated occupant in the driver’s seat. The occupant was arrested for driving while intoxicated. Synopsis: The Supreme Court has held that an intoxicated person who is in the driver’s seat of a motor vehicle with the key in the ignition is operating the vehicle. State v. McGlone (1991), 59 Ohio St.3d 122, 570 N.E.2d 1115. However, in that case the court held that the car was under the driver’s control because he could have moved the car whenever he wanted. Similarly, in State v. Cleary (1986), 22 Ohio St.3d 198, 22 OBR 351, 490 N.E.2d 574, the Supreme Court found that a stationary vehicle is being operated within the contemplation of the statutes where a person is seated behind the steering wheel of the vehicle with the ignition key in the ignition and the motor running. However, once again, in Cleary, the car was operable. The court pointed out that the statutes were aimed at intoxicated persons with impaired faculties **63 who were behind the wheel of an automobile which could be put into motion to cause a hazard to another person who is using a highway. Columbus v. Seabolt Held: This, without more, was not enough to support a conviction for “driving” while intoxicated. Note: This is an example to articulate!

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19. Pro Tip: Actual physical control occurs when “the person has existing or present bodily restraint, directing influence, domination or regulation of the vehicle.

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21. Case Sample: Cops got a call of a female drunk driver. Cops found the car on the side of the road with a male behind the wheel, engine off, female not on Synopsis: The Nevada Supreme Court did address some of the factors in detail in Barnier v. State, 119 Nev. 129, 67 P.3d 320, 323 (2003). In Barnier, the police received a tip about a female drunk driver. Barnier, a male, was found behind the wheel, parked along the roadway. The trial court gave a jury instruction that did not include all of the Rogers factors and the Supreme Court reversed Barnier’s conviction. Held: These facts alone did not prove male drove or had APC of vehicle.

22. Pro Tip: The most difficult APC case is where it’s possible the person drove to the parking lot sober (think bar) and claims to be “sobering” up or is waiting for the DD.

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24. In deciding whether someone has existing or present restraint, directing influence, domination or regulation of a vehicle, the trier of fact must weigh a number of considerations, including where, and in what position, the person is found in the vehicle; whether the vehicle’s engine is running or not; whether the occupant is awake or asleep; whether, if the person is apprehended at night, the vehicle’s lights are on; the location of the vehicle’s keys; whether the person was trying to move the vehicle or moved the vehicle; whether the property on which the vehicle is located is public or private; and whether the person must, of necessity, have driven to the location where apprehend.

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26. Legal Rule: “Vehicle” means every device in, upon or by which any person or property is or may be transported or drawn upon a highway except devices moved by human power.* (typical statute)

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28. Legal Rule: Public access means locations which are open to the general public. Gated communities/businesses are usually included. But not private driveways, backyards, and farms.

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30. Case Sample: There are usually two way to prove “under the influence.” BAC or alcohol affected the defendant “to a degree that renders them incapable of safely driving or exercising actual physical control of the vehicle.”

31. Pro Tip: Virtually every state provides that the slightest impairment of the ability to drive safely is sufficient.

32. However, you still need evidence (FSTs, driving) to prove their driving was affected.

Module Six: Transitions to DUI Investigations:

1. Best Practice: Do not tell drivers prematurely that they are not

2. Video: “DUI Stop”

3. Legal Rule: You need reasonable suspicion to ask a person to conduct FSTs

4. Pro tip: Articulate exactly when you transitioned a traffic stop to a DUI investigation along with bullet

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Module Seven: BWC Articulation:

1. Best Practice: If permitted by your DA, narrating facts and circumstances not visible or detectible on BWC may help

2. Video: “BWC Articulation”

3. Best Practice: Articulating a play-by-play may not be admissible in court.

Module Eight Miranda:

1. Legal Rule: Miranda only applies when there is arrest-like custody, like handcuffs, in back of car, transportation, etc.

2. Case Sample: An officer detained a driver in handcuffs and placed him in back of police car. Another officer arrived, took off handcuffs, and asked him about drug Synopsis: Cooper relies on People v. Bejasa (2012) 205 Cal.App.4th 26, 140 Cal.Rptr.3d 80 (Bejasa). There, officers arrived at the scene of an auto accident and found Bejasa, who had methamphetamine and syringes. He also was on parole. An officer handcuffed Bejasa, told him he was being detained for a possible parole violation, and put him in the police car. After other officers arrived, Bejasa was let out of the car and uncuffed. He was “interview[ed],” asked to do FSTs (including the Romberg test), and then arrested. (Id. at pp. 30-31, 140 Cal.Rptr.3d 80.) The appellate court concluded Bejasa’s “incriminating statements regarding his use of drugs” made during questioning, as well as his performance on the Romberg test, should have been suppressed. The court noted officers already had probable cause to arrest Bejasa on a parole violation. (Bejasa, supra, 205 Cal.App.4th at pp. 33, 39-45, 140 Cal.Rptr.3d 80.) The officer’s questioning went beyond general on-the-scene questioning; by the time the officer “contacted [Bejasa], [he] had moved past interrogation and into the realm of inculpation.” (Id. at p. 40, 140 Cal.Rptr.3d 80.) Moreover, Bejasa’s statement during the Romberg test was like Muniz’s response to the question about the date of his sixth birthday: it required the suspect to make a calculation and “to communicate an implied assertion of fact or belief.” (Id. at p. 43, 140 Cal.Rptr.3d 80.). Held: Drug statements suppressed because this was arrest-like custody.

3. Note: Tell the driver he’s not in

4. Case Sample: An officer asked an apparently intoxicated driver whether he drank or consumed He admitted that he did, and his statements were used against him. Synopsis: Specifically, in Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984), the Supreme Court found routine questioning during a traffic stop did not arise to the level of a custodial interrogation. In Berkemer, a police officer stopped a vehicle he saw weaving in the roadway. Berkemer exhibited signs of intoxication and failed a field sobriety test. Berkemer was then asked if he had been using intoxicants. Berkemer admitted to drinking alcohol and smoking marijuana. Berkemer was arrested and given a chemical test. Berkemer argued that his questioning should be suppressed because he was not given his Miranda warnings. In rejecting Berkemer’s claim, the Supreme Court found the questioning of Berkemer did not rise to the level of a custodial interrogation. In the absence of a custodial interrogation, no Miranda warnings are necessary. The Berkemer court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 468 U.S. at 428. The Court concluded questioning as part of a traffic stop does not constitute custodial interrogation. Nevada has adopted the Berkemer rational. Dixon v. State, 103 Nev. 272, 737 P.2d 1162 (1987). Held: The driver was not in custody even though ot free to leave.

5. Pro Tip: Note, Miranda only applies to “testimonial” evidence, not physical evidence like FST

6. Case Sample: An in-custody driver was asked to perform FSTs without Synopsis: Muniz forecloses Cooper’s argument as to the first four of the six statements she lists in her brief. Asking a DUI suspect to perform physical tests is not an “interrogation.” Colwart testified he explained each test, demonstrated several of them, asked Cooper if she understood, then asked her to perform the tests. Cooper volunteered her statements, claiming an inability to perform the tests and telling **519 Colwart the nature of the “disability” she cited was none of his business. It is plain why the legal analysis Cooper proposes is not the law: A driver suspected of being under the influence could simply behave obstreperously at the scene, requiring officers to take her to the station for everyone’s safety to perform the FSTs. The suspect then could claim—because she was now “in custody”—her Miranda rights attached and she had a Fifth Amendment right to refuse to perform the tests. Where—as here—officers *652 did not yet have probable cause to arrest the suspect, but instead were trying to continue their investigation, they would have no choice but to release the suspect. Held: Her HGN test was not testimonial, but her performance under the Romberg test was.

7. Pro Tip: Remember, even if you plan to arrest the driver after FSTs, it’s irrelevant as long as it’s not communicated.

Module Nine: Hot Pursuit into Curtilage:

1. During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph. Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him. The trial court denied Collins’ motion to suppress the evidence on the ground that Officer Rhodes violated the Fourth Amendment when he trespassed on the house’s curtilage to conduct a search, and Collins was convicted of receiving stolen property. The Virginia Court of Appeals affirmed. The State Supreme Court also affirmed, holding that the warrantless search was justified under the Fourth Amendment’s automobile exception. Held : The automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein. Pp. 1669 – 1675.

2. Per the Iowa Supreme Court: “Society has an interest in not rewarding the evasion of lawful police authority by allowing suspects who made it to their homes steps ahead of law enforcement officers to claim sanctuary” Background: Once inside the garage, Killpack asked Legg to come outside so that he could speak with her. She repeatedly stated, “I’m home.” Killpack noticed that her breath smelled of alcohol. He then gently pulled on her coat to “coax” her out of the garage. At that point he could see that her eyes were bloodshot and watery. In addition, Legg had difficulty keeping her balance and her speech was extremely slurred. When Killpack asked to see her license, Legg became angry and attempted to push the officer away from the door so she could go back inside. Killpack then told the defendant he was concerned about *766 her intoxication and asked her to go with him to the law enforcement center. When she refused to cooperate, he placed her in handcuffs and informed her she was under arrest for operating while intoxicated (OWI). Once they arrived at the law enforcement center, Legg refused to perform field sobriety tests and refused to take a preliminary breath test.

3. Evident Related Search

4. Legal Rule: You may search a vehicle if you have reason to believe offense-related evidence is inside the Note: This search is likely invalid in New Mexico.

5. Question: You arrested driver for DUI, can you search car for evidence? Need P.C.? If you just saw him leave a bar maybe not. Remember, search is limited in scope.

6. Video: “Traffic Stop” Warrant:

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8. Best Practice: Make it clear that you complied with the observation period and did not leave the room.

Module Nine: Trial Strategies:

1. Impeachement

2. Observation from Peter Johnson, Renown DUI attorney: Although it is also the case that even honest and conscientious officers tend to observe many of the same symptoms and describe them in identical language…evidence of a “carbon-copy report” can be devastating; jurors find it very interesting that the officer on the stand always observes a suspect, for example, travel at 70 miles per hour, cross into the number 2 lane for two seconds and then back to the number one lane…

3. Best Practice: Save Templates as ready

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5. Best Practice: If you made OT during the arrest, be prepared to state that you also arrested plenty of people while not making OT.

6. Impeachment

7. Best Practice: If defense counsel tries to imply you are motivated to make sketchy DUI arrests because of a DUI award, respond that you are only motivated to save lives ruined by drunk drivers.

Module Ten: Defenses that Work:

1. Defenses

Module Eleven: Takeaways